Com. v. Longval

• Decision Date: 12 June 1979
• Parties: COMMONWEALTH v. Norman L. LONGVAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1117

390 N.E.2d 1117

378 Mass. 246

COMMONWEALTH v. Norman L. LONGVAL.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 6, 1979.

Decided June 12, 1979.

Beth H. Saltzman, Boston, for defendant.

Patrick J. Riley, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The single issue presented by the defendant is whether State prison sentences imposed on him totaling forty to fifty years, and later reduced by the Appellate Division of the Superior Court to thirty to forty years, were grossly and unlawfully disparate from a codefendant's sentences to three years in a house of correction and an additional term of probation.

Norman L. Longval, Richard T. Ellard, and Kenneth M. Golden were indicted jointly on two charges of armed robbery, assault by means of a dangerous weapon, unlawfully carrying a sawed-off shotgun, and using a motor vehicle without authority. All of the defendants appeared before a judge of the Superior Court on November 6, 1975.

Ellard pled guilty to all indictments and was sentenced as follows: two years in a house of correction on the assault by means of a dangerous weapon charge; one year in a house of correction on the motor vehicle charge, to be served from and after the first sentence imposed; and three years probation on the armed robbery charge, to run from and after the second sentence imposed. The other indictments were filed.

Longval and Golden had a trial by jury from November 6 until November 10, 1975, before the same judge who sentenced Ellard. Longval was convicted on all indictments and was sentenced as follows: concurrent terms of thirty-two years to forty years at Massachusetts Correctional Institution, Walpole, on the armed robbery charges, and concurrent terms of eight to ten years on the assault and gun carrying charges, to run from and after the sentences for armed robbery. The motor vehicle charge was filed. Golden was acquitted on all indictments.

As a result of a sentence appeal, Longval's sentences were reduced by the Appellate Division as follows: concurrent terms of thirty to forty years on the armed robbery indictments, and lesser terms as to the other sentences, all to be served concurrently with the sentences for armed robbery.

On his appeal pursuant to G.L. c. 278, §§ 33A-33G, Longval assigned one error dealing with the disparity between his sentences and those given Ellard. Subsequently, Longval filed a petition for a writ of error in this court attacking his sentences and referring to matters outside the record on appeal. A single justice of this court declined to issue the writ, but instead ordered the record on appeal to be expanded to include the transcript of Ellard's plea and sentencing and, by report of a special master, to include the substance of an unrecorded lobby conference between the sentencing judge and the counsel in the case. After a hearing, the special master found that in an unrecorded conference during the presentation of the Commonwealth's case, the judge said to Longval's counsel: "(T)he evidence in this case as it is coming in is very serious robbery of a drug store, taking (i. e. theft of) drugs, use of a shot gun. I am wondering if you and the Commonwealth have had any discussion regarding a plea (of guilty). I strongly suggest that you ask your client to consider a plea, because, if the jury returns a verdict of guilty, I might be disposed to impose a substantial prison sentence. You know that I am capable of doing that because you know of the sentences in a previous trial." The master found that the judge was referring to "very substantial sentences" imposed that month on three codefendants after jury verdicts of guilty.

At the hearing during which Ellard pleaded guilty, the prosecutor read a police report of the incident, which contained a statement given by one Arthur M. Kelley. According to that statement, Kelley and one Michael Coraine were working in a drugstore in Swampscott when a man came behind the prescription counter "jabbing" a short-barreled gun at them and saying, "I want narcotics, the morphine, all the Class A's." As Kelley filled bags with narcotics from the medicine cabinet, the man told Coraine to lie down and took a five-dollar bill from Coraine's wallet. Another man, Ellard, came up with a knife and told the first man to hurry up. The first man directed Coraine to open the cash register and told Kelley to lie still on the floor, saying, "If you move, I'll blow your brains out." Before leaving in a Chevrolet automobile, the men further threatened them, saying, "Don't move or we'll blow your brains out. Stay put for five minutes."

The police report further indicated that in response to a radio report, officers in a police vehicle chased the Chevrolet. A person on the passenger's side shot at them but missed.

During examination by the judge, Ellard said that he had suffered blackouts from drinking and had an alcohol problem but was not presently addicted to alcohol. Although admitting involvement in the crimes, he said he was drunk at the time, did not use the shotgun, and did not threaten anyone with the knife he carried.

After accepting Ellard's pleas, the judge heard the prosecutor's recommendation: a three- to five-year State prison sentence on the two armed robbery indictments to be served at a house of correction. Observing to defense counsel that "we had an informal conference on this matter this morning," the judge said, "I have gone through the probation record, and I'm aware that this defendant has not been in any real serious trouble prior to this event of June of this year. And I think his problem is primarily alcohol." Defense counsel added, "(F)or the last eleven years he has had a problem, and as a result has lost jobs, his family, his wife," and asked that the assistant district attorney's recommendation be adopted. The judge, in imposing sentences totaling three years in the Billerica House of Correction and a consecutive term of three years' probation, noted that alcohol treatment was available at Billerica. He also imposed as a special term of probation that Ellard "seek and sustain alcoholic treatment."

At Longval and Golden's trial, the Commonwealth called seven witnesses. Kelley and Coraine testified in a manner generally consistent with Kelley's statement to the police. They identified Longval as the man who carried the shotgun while in the pharmacy. Neither witness could identify Golden or say whether he was in the getaway car.

Police witnesses identified Longval as the driver of the green Chevrolet they chased and Golden as the front seat passenger who shot at them while the car was taking a curve at a high speed, about 150 feet in front of their cruiser. They described the arrests of Longval and Golden at separate locations in Marblehead. Golden denied participation in the crimes and said he had been jogging.

After the Commonwealth rested, Longval testified. Longval stated that he went to the Bickford Pharmacy with Ellard in a car he previously had stolen, and that no third person accompanied them. Inside the pharmacy, Longval carried the gun, which he had obtained from a friend of Ellard. He further testified that during the chase, he drove and Ellard used the gun to shoot at the police; that Golden was not present and did not participate in the crimes; and that he first saw him that day at the Swampscott police station. Golden did not testify.

After the jury convicted him on all indictments, Longval was sentenced. The prosecutor recommended a State prison sentence of thirty-two to forty years for armed robbery and a consecutive eight- to ten-year sentence for assault by means of a dangerous weapon. He made no recommendation on the remaining indictments.

Defense counsel advised the judge that Longval was thirty-six years old. Stating that his client had testified "in an effort to see to it that justice was done in a case of a fellow he felt was wrongfully accused," counsel suggested that "the Court should take into...